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Supreme Court rules Georgia state law annotations not copyrightable [pdf] (supremecourt.gov)
304 points by erjiang 32 days ago | hide | past | web | favorite | 202 comments



Aside from the particulars of this case, I feel that the whole subject of copyright is generally anti-competitive and rent-seeking, as codified in the laws and time limits being inflated grossly to suit copyright holders in the current era.

In my opinion, the argument that copyright extension incentivizes authors/creators doesn't hold much water. I generally observe that there are plenty of people willing to create and publish things with absolutely no hope of profit or legal protection, and yet we bend over backwards to extend our protections for the lucky few to the tune of the author's life + 70 years. Even more if for hire. Tell me how that's in the public interest.


You make two arguments here, one about degree and the other about kind. As for kind, as others have pointed out, the intent of IP law is to create artificial scarcity. The marginal cost of information is 0, so you have to put turnstiles somewhere. Society has kind of blundered and stumbled into the mishmash of enforcement measures we have today, but the intent is to reward content creators.

If you accept this is a good thing, then the degree problem becomes one of proportionality. I agree that life + 70 years is exorbitant, but that particular formula is relatively easy to change legally. Practically, you have to fight powerful interests (Disney) to change it, but it can (and IMHO should) be done.

One interesting notion is to fully privatize the problem of artificial scarcity. This might look something like leasing a Disney device (for example) to watch Disney content. This seems like something of a nightmare, until you realize that you don't really need to watch movies.


The problems with the DRM route are ... well known. See the EFF (https://www.eff.org/issues/drm) and FSF (https://www.fsf.org/campaigns/drm.html) especially.

Among other matters:

- Your devices are no longer fully under your control, and don't answer to you.

- Even where DRM isn't itself directly. malware (Sony: https://en.wikipedia.org/wiki/Sony_BMG_copy_protection_rootk...), it inevitably creates backdoors for APTs.

- The legal proscriptions on analysing and assessing ADRM mechanisms create both minefields for researchers and multiply the existing security threat risk.

But most critically, and pretty much fully torpedoing your voluntarism argument, device vendors may be contractually or legally prohibited from producing non-DRM-afflicted devices in their own relationships with DRM gatekeepers, meaning that there are no (or very crippled or expensive) DRM-free alternatives.

Witness ongoing efforts to plug the "anologue hole" (https://www.eff.org/issues/analog-hole) in various devices and software.

FWIW, my complete crap Chrome browser on my complete crap Samsung Android device refuses to allow me to screenshot this HN thread claiming it is a "DRM protected page".

I'd love to replace the device with something vaguely comparable. Between licensing restrictions, monopoly coercion, and market dynamics, there is literally nothing available.

Or more briefly: Your assertion is absolutely unsupported by empirical experience.


> FWIW, my complete crap Chrome browser on my complete crap Samsung Android device refuses to allow me to screenshot this HN thread claiming it is a "DRM protected page".

Just tested with Firefox on Android (Moto E4 phone). Firefox did not block taking a screenshot of this thread. Perhaps you may wish to test Firefox yourself to see if it better obey's you than Chrome does.


The problem simply should not exist.


Agreed.

But sadly it does, and while it does the options available are try something else or do without. In this case you can try Firefox for Android on your phone to see if it behaves better than Chrome.


The point really isn't to solve my personal inconvenience of a problem that should not exist.

It's to point out the problem that shouldn't exist, its root cause, and only one very minor, mundane, and utterly ridiculous consequence. Of a problem that should not exist.

At all.

For any reason.

But thank you regardless, your heart at least is in the right place.


So going back to who you were originally replying to that spawned this little thread and trying to tie this all together because I’m lost with what you are trying to say.

What is this problem that shouldn’t exist, this root cause? And in which scenario does it go away: with the status quo laws or with their removal? And why would the scenario remove that root cause problem?



Firefox on iOS also works


I wasn't aware I was making any kind of assertion, honestly. But I think a world in which proprietary content must be totally vertically integrated with a non-owned proprietary device is at least an honest way to enforce artificial scarcity. I think the "shape" of this system represents a kind of platonic ideal that combines artificial scarcity in a free market system that values property rights. I find the idea abhorrent myself, and would not intentionally lease such a device, but I think it helps clarify the discussion.


> But I think a world in which proprietary content must be totally vertically integrated with a non-owned proprietary device is at least an honest way to enforce artificial scarcity.

In addition to all of the other objections, the biggest failure here is of the technical measures to actually prevent copying. Even when it's prohibited by law and the pirates are a bunch of hobbyists, DRM gets broken time and again. You can imagine what would happen if copyright didn't exist and then breaking the DRM allowed for-profit businesses to legally distribute any of the content they extracted.

Copyright without DRM >>> DRM without copyright.

Though it should definitely be one or the other and not both. If copyright exists then DRM is not only useless, its existence is pure harm because all it adds to copyright is restricting things the copyright doesn't give the copyright holder a right to restrict, like free speech and fair use.


I speculate that it's theoretically possible to build virtually unbreakable DRM into a physical device, especially if the device is designed to resist (or at least detect) disassembly. (Analog re-recording notwithstanding).

I like your point about DRM vs copyright. I guess I've always seen DRM as the "ounce of prevention" that replaces the "pound of cure" that copyright enforcement entails - although distribution platforms like YouTube increasingly reduce that pound to closer to an ounce (at the cost of more abuse). I think your point would be valid if enforcement of copyright was simpler and cheaper; perhaps you've read stories about photographers whose work has been used by large companies, without compensation, usually because the asset was included in projects done by 3rd party contractors. Its very expensive for an individual to enforce their rights. But yes, if the justice system itself were fixed to be fast, cheap, and fair, then I would agree that copyright alone would be the preferable solution.


I do this somewhat by choice. I have a mildly damaged old phone that I use as my "proprietary app device" with Spotify, Discord, etc. It allows me to sandbox their access to my life, to some extent.


> - The legal proscriptions on analysing and assessing ADRM mechanisms create both minefields for researchers and multiply the existing security threat risk.

Well I assume if we repeal all copyright then the laws against breaking DRM will be repealed too.


Screenshot worked just fine here, I don't know what might have been causing your problem (Android Chrome)


I'm not sure why you think that scarcity is such a good thing that it needs to be created artificially.


Why would we need to incentivize creating more legislative annotations?


IP laws are anti-competitive and rent-seeking, that's exactly the point. I agree that the amount of time copyrights are good for is ridiculous, but I still think it's better than not having them.

Imagine if J.K.Rowling wrote the first 3 Harry Potter books but didn't see a dime because the second they got popular everyone with a printing press started selling them royalty-free. Would she have finished the series? I got to read all 7 books because J.K.Rowling was incentivized to write them by her copyright.


The first Harry Potter book was released in 1997 and the first movie was 2001. So to satisfy that the author be compensated would not require 70 years after her death.

I think most of us agree that copyright has value but its become excessive.


IMO 30 years or the death of the author, whichever occurs sooner, is long enough for the author to benefit from their work.

There really isn't any difference in terms of incentive for the author between 30 years and the current life of the author + 70 years (or whatever the current term is).


I don't want to penalize the families of authors who die suddenly and award a windfall to corporations. 30 years is just fine, no need to discuss the author's death at all.


I think 15 years would be more than enough, certainly in most fields of copyrightable endeavor. Whether there are fields where that wouldn't be long enough, I'm not sure.

The copyright on the first Harry Potter book should have expired by now. Copyright expiration should not be merely a distant possibility that we rarely think about, as it is today.


The reason why +years exists is mostly for the case of inventors who die prematurely, so that their family can still reap the benefits. It's the same reason why widows can collect their partners' pensions.


No, that's not it. The reason is that Disney lobbied to have the copyright term extended to prevent Mickey Mouse entering the public domain. This is despite that Disney was essentially built on public domain works.

This isn't how copyright was meant to work.

https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act#S...

CGP Grey on copyright: https://www.youtube.com/watch?v=tk862BbjWx4


It's interesting to me when others come up with similar conclusions independently.

There's studies of sales of works (books etc) and iirc, at least with books, the vast majority of sales are within the first several years, with income trailing after that. This has come up in discussions of zombie rights to works, where a publisher sits on something out of print without releasing new copies because the return isn't enough. It's like the textbook reason for limits on copyright terms. Last I looked at it, 30 years was more than sufficient to cover the bulk of sales in almost all cases. If you think back 30 years now, that would be works released pre 1980s and earlier. That makes intuitive sense to me.


My primary concern is all of the works that die because they're no longer commercially viable but are still locked away; I'm actually willing to make an exception for the rare blockbuster hits if it actually means everything else becomes available.

My thinking is author's life for unpublished works (to protect works-in-progress), 10 years after publication unconditionally, followed by a sequence of renewals that require some level of public availability to be granted.

Obviously, there's a lot of details to be worked out: What constitutes publication? How long is the initial unconditional period? How many renewals are allowed and how long is each? What are the actual requirements to get a renewal?


You're assuming that copyright is the only way to make money out of writing, which is simply untrue.


Okay. So using the J.K. Rowling example: provide a plausible way that she could make money off of her writing, and particularly her first risky book, in the absence of copyright.


There are a number of cases where creators of popular works have been granted substantial sums to create subsequent works through crowdsourcing.

Edit for examples.

Cyan, creator of Myst and Riven, had two very successful Kickstarter to fund new works. First, they raised $1,321,306 to make Obduction, then $1,433,161 for Firmament.

Elite: Dangerous raised £1,578,316 for a modern remake.

Yes, it works for books, too: https://www.kickstarter.com/discover/advanced?category_id=18...


Cyan had already made Myst and Riven. This is close to the opposite of what I was asking for.

So once again: you seriously think that J.K. Rowling, a completely unknown author with a manuscript repeatedly rejected by publishing houses, is going to be able to raise sufficient funding on Kickstarter for her first work?


And how much did those titles actually cost to make? I seriously doubt either game shipped without at least 4x the kickstarter funds.

They were only able to make up the rest because they knew copyright meant they'd get paid more when they shipped via sales where as without copyright it would just be copied.

Here's an article on Elite:Dangerous saying the actual budget was 8m

https://www.eurogamer.net/articles/2014-09-11-elite-dangerou...


> I seriously doubt either game shipped without at least 4x the kickstarter funds.

Yes, but AAA games and e.g. feature films are among the highest-cost works to make. They're very much an exception, not the rule.


I'm not sure what your point is. I thought the point that was trying to be made is that Kickstarter is a way to fund gamedev. But AFAIK there isn't a single example of the funds from Kickstarter being sufficient funding for a single game ever, AAA or indie.

(unless the game was being made for free as a hobby and the kickstarted was just for fun and not actually funding).


Crowdsourcing still relies on copyright usually, and does in the cases you mention. It's simply preording a game or a book. Without copyright there would be no need to preorder the game or book, you could simply wait until it is out and make a free copy of it.

Both Obduction and Firmament are for sale. They aren't free games.


There are plenty of freely-available works that are crowdfunded though. It's true however that the costs of making a game like Obduction and Firmament dwarf even those crowdfunding revenues. The same applies to high-budget feature films. A 100% crowdfunding approach strongly selects for lower production costs, which also means improved efficiency and a larger variety of works overall.


Her first book was also written without her receiving any money to do so.

As to revenue Patrons, Trademark, etc also work. Shakespeare for example had zero copyright protection and still wrote quite a bit.

PS: If anything the massive sums she received from the HP series discouraged her to write more.


> Her first book was also written without her receiving any money to do so.

But she owned the copyright to it, and could trade that copyright for a contract on the book. That is, she had a viable monetization mechanism if her work was good.

So once again: absent this, provide a plausible way Rowling could have made money on her first book.


>So once again: absent this, provide a plausible way Rowling could have made money on her first book.

The way she made money was extremely implausible.

This is like arguing we need the NBA because it provides a job for LeBron James.


If we are talking a world without copyright but all other forms of IP, patrions or merchandise.


Rowling is quite an outlier - 1% of 1% of 1%. While a fascinating example, it seems unoptimal to center copyright protection laws around her experience.


She's only an obvious outlier after the fact, though; protecting all authors because they are potential outliers is a perfectly valid goal.


Optimizing a system for the 1% of 1% of 1% is not the greatest good.


Not if your goal is to help the greatest number of authors, but it might be if your goal is to help the greatest number of readers. Since a single book can be enjoyed by many, it's arguably better to have a single book that is very liked than one thousand books that nobody really likes to read.


Hosting workshops, personal appearances, giving lectures, being paid to write more material.


But who would host the workshops for her? Who would pay her to write more? She was rejected multiple times from multiple publishers.


I write and give away free software. People have paid to come to my workshops. They've paid me to write more.

It's sort of like why would anyone pay to attend MIT, when you can watch videos of the lectures for free on youtube? Oddly enough, MIT is doing better than ever.


MIT has an IP-equivalent in the form of the exclusive right to tell people you graduated there. Plus a regular property right in who frequents the campus, and it's known that much of the value comes from the network one forms there.


Exactly my point. The value isn't in the video of the lectures.


The Andy Weir example. "The Martian" was originally a blog series, and actually his 3rd book.

He created an ebook version of The Martian, freely downloadable at the time. People did give him donations though. He only added it to Kindle for $0.99, because Amazon wouldn't let him distribute it for free. It look off from there.

When people would rather give the author $0.99 to make it easy to access on Kindle, than download it for free, and it becomes a bestseller, then that is a plausible way for an author to make money.


In a world without copyright, Amazon could have just converted the book to Kindle themselves and keep the $0.99.


How much did Fox pay to license the copyright?


Most authors don't see a dime though!


In the absence of copyright, one supposes that authors would get large up-front fees for publishing, and that the fee for book 4, book 5 and so on for JK Rowling would have been quite large, so I suppose she would have done just fine. Think "Kickstarter, but for authors".


But why would the fee be quite large? Who would pay such a large fee when immediately after they publish the book, rival publishers who paid nothing could print their own versions. Even if it was a kickstarter model with decentralized payments from individuals, a large number of people would simply wait until the kickstarter was over and the book published to get it for free. Imagin that was the case with kickstarters now: How many people would pre-pay for products that have no quarantee of delivery if they knew that waiting would earn them the item for free? Again, even if there was a guarantee the product would be finished, those who wait would still get it for free.

I'm not saying this couldn't work, in theory, but I think in practice that the # of parasites has the potential to make such a model unworkable. But maybe not! I'd be perfectly happy if you're right and it worked.


The entire point of the Kickstarter model is to solve collective action problems of that kind. It's in the individual's interest to contribute, because otherwise the project might not reach its funding threshold, or might have trouble reaching the 'stretch' goal that some care about. This ensures that the 'funding' issue is solved, at least.


Who would be contributing to this Kickstarter? People who already know her, and know that her books are good? That's not where the real money is, or the measurement of market value of an author's labor; the money is in the flow of cash from consumers.

More generally, non-excludable goods do not work well within a free market system. If you want them produced, you either set up a state mechanism for funding them (which many countries do for e.g. film, by creating national film funds), or you somehow make them excludable (e.g. through copyright). The other options aren't really effective.


You're pointing to an information problem that has little to do with non-excludability. A prospective funder faces the exact same issue anyway! And crowdfunding has been used to fund many sorts of good/service provision where non-rivalry is an issue. It does appear to work quite a bit better than other market-based options.


The exact opposite would happen. No publisher would pay very much for rights to a book that they cannot defend. Once that book hits the shelves, everyone with a printing press will be copying it and selling it at cost, which will undercut the first publisher because they need to include royalties in the price. They certainly aren't going to print a million copies if they aren't sure that they can sell them before someone starts copying them, so that would naturally limit the size of launches, further driving down the value of a manuscript.

There'd be a small first-mover advantage for being the first to print a book and smaller operations not worth copying would still operate but J.K. Rowling wouldn't be a billionaire.


In this case, the "rights" would not be those of a book publisher but those of a patron/sponsor. Being among the persons or corporate entities who e.g. J.K. Rowling officially acknowledges as the "sponsors" of her work would create a lot of clout, and with that a lot of very real value. Authors used to be funded like that before the current copyright-based system became predominant; it's not just a theoretical model.


I suppose she'd be able to sell "official copies" or something akin to that, but no matter what she's still not capturing as much of the value she created if she cannot assert a copyright. There's also nothing in copyright law precluding her from also getting sponsors. If anything, copyright law makes it clearer where everyone stands and so makes connecting writers and sponsors (or employers through a work-for-hire agreement) much easier.


> she's still not capturing as much of the value she created if she cannot assert a copyright

No one's disputing that. But she's also creating a lot more value at the same time. It's a wash.


It's not a wash for her, though, which may change her decisions to actually produce the work.


If the model is so good, what is preventing her from doing it now? There is nothing in law saying you have to copyright your books, she could simply release it under creative commons. What even qualifies you to know what is best for authors and publishers? I love how so many people love volunteering other peoples work for free or propose they jump through hoop in some byzantine system to make money in a way that is acceptable to you.


> I love how so many people love volunteering other peoples work for free or propose they jump through hoop in some byzantine system to make money in a way that is acceptable to you.

Yes, that's called democracy. Copyright must be a system that is acceptable to most of us. In fact, copyright itself is more "byzantine" than just having the State issue a stipend to anyone who produces a work of art - yet must we be OK with such a solution?

Similarly, Joseph Galambos considered that people who coined words were due a royalty when they were used. Is is unfair that we decide to use that work for free instead?


Copyright has the force of the state behind it obviously it's going to beat out any solution that doesn't.


In the days before the Berne convention, US publishers copied British books without paying the authors, which of course made the British authors unhappy. In some cases, because there was a bit of a first mover advantage, publishers would send their agents to London to acquire copies of the plates for popular authors as quickly as possible, and were willing to pay a fee for this.


What would the fee mechanism be for her very first book? Who would pay it? Remember, this book was so risky that she was rejected by quite a number of publishers.

Copyright is also the tool of open source code licensing. How exactly would a viral license operate when, lacking copyright, the authors have nothing to license?


While true, and I am willing to work with (and contribute to) software licensed by GPL and other free software licenses, my own programs are all under the public domain, because I am against copyright. I believe in reducing rather than increasing legislation, in general, so that would mean is better to abolish copyright. Even so, if copyright is abolished and then someone does copy it and won't release the source code, someone can legally reverse engineer it anyways, give them a bad reputation, or whatever else it may be. Furthermore, abolishing copyright would not mean abolishing trademarks, so you can still refuse to grant permission to use your trademark. (I also think that in addition to abolishing copyright, patents should also be abolished. Trademarks should not be abolished, but perhaps its scope should be reduced.)


An author's children shouldn't get jack unless the author saved royalties for them.


> An author's children shouldn't get jack unless the author saved royalties for them.

This is such an obvious notion and it's not discussed nearly as often as it should.

It's not like my employer will be sending my last paycheck to my children 70 years after my death...


On the other hand, your employer does not have the opportunity to accumulate your work without paying you while you are alive, then apply that accumulated work for fun and profit after your death. The "life plus X" is a Chesterton's Fence - it was originally there for a reason. The length of X has since grown to be ridiculous, yes, but posthumous publishing of works for which the creator received nothing was a thing.


Copyright in unpublished works is an entirely different matter than in published ones. Unpublished works get much stronger protection, that can extend for as long as 120 years from creation in the U.S. So I don't think your scenario is very relevant.


> I feel that the whole subject of copyright is generally anti-competitive and rent-seeking

Property rights in general are anti-competitive and support rent-seeking. That's actually very much the point of them; to insulate a particular interest from those who would compete with the person to whom the right is granted and enable the grantee to reliably extract value from the subject of the right, including by monopoly rents.


Originally copyright was a bargain between the creator and the government (originally the Crown, but now the people) - essentially it's "we give you a fixed term monopoly, and in return you turn your creation over into the public domain afterwards".

Two things have messed with that deal - corporations are now treated as people, who live forever, and copyright extension allows corporations to extend copyright past the lifespan of the public they've made that bargain with.

I'd argue that a bargain that you can never collect on is not a valid bargain - the whole basis of copyright has been undermined - now it's just a monopoly.


For patents, part of the deal was also that the inventor should clearly describe how the invention works. Modern patents, however, are drafted to be so obtuse that they’re basically impossible to learn from.


Copyright is abused, yes. People want to write anyway, yes. But you need time and resources and space to write, review, edit.

Some novelists spent years collecting rejection slips (e.g. Stephen King; Larry Niven did it full time with a trust fund), which is probably irrational. But with no pot of gold at the end, only the properly delusional or wealthy could justify that investment.

OTOH copyright enforcement isn't that effective, so publishers meaninglessly vary textbook editions yearly, with expiring access to essential online content.


Maybe Congress should delegate the time of IP rights to the agencies, and then we can just worry about regulatory capture, but not the insurmountable nature of getting Congress to listen to the people instead of Corporate IP aggregators


I agree with you. I don't like copyright either. I think it should be abolished, but would also accept to greatly reduce the duration and scope of copyright. That is why I write stuff to be public domain instead.


If you want to retain a professional creative class then you must implement a system that allows them to benefit from the works they produce.

To rely on people producing things producing things without economic incentive is essentially the argument for anarchosocialism. It might work to some small degree for passion projects, but what the overall volume of creative production would collapse as creatives would have to find other ways to support themselves.


As usual, we can look at history for answers.

In the 19th century in Germany, Germany had no copyright or patent laws. There was an explosion of creativity and technological progress, and Germany became the European leader economically and technologically.


The lack of patent laws was very clearly a positive for Germany; the argument for those is IMO much weaker than for copyright. Especially for developing, backward economies (early-19th-century US, late-19th-century Germany, and contemporary China), ignoring foreign patents is very useful for speeding up technology transfer from more advanced economies; within 19th-century US there's some limited evidence for patents being useful as a way of paying local, small producers to publish their innovations widely, but the domestic Chinese quasi-open-source "shanzhai" electronic ecosystem produces quite a lot of its own innovation while completely disregarding patent rules.

But the evidence for lack of copyright being useful in that period is very weak: https://www.wired.com/2010/08/copyright-germany-britain/

Most of the great German authors of the period had to hold other jobs to support themselves, which made completing works slow and halting. Goethe supported himself as a courtier/bureaucrat/officer of the Duchy of Saxe-Weimar until his mid-40s, Hegel was a teacher and academic administrator, Kleist barely made a living off of of publishing a magazine and stints in Prussian government service, etc.


Most authors today have to hold other jobs to support themselves. In fact it's likely the vast majority. I know several successful authors. None of them make enough off of the books to live on.

But what they have done is leverage the status the books conferred into lucrative careers.


> Most of the great German authors of the period had to hold other jobs to support themselves, which made completing works slow and halting.

And yet, they were nonetheless able to be great authors. Now, contrast German authors of the 20th century, when copyright law was adopted. There's just no comparison.


There are MANY things that changed in that period.


> Especially for developing, backward economies (early-19th-century US, late-19th-century Germany, and contemporary China), ignoring foreign patents is very useful for speeding up technology transfer from more advanced economies

There is no doubt that copycats would benefit enormously from an absence of patent protection, but innovators would doubtless invest less capital in innovation if they could protect it.

Germany, U.S., and Chinese copycats were about to free-ride on the license fees paid by English manufacturers to patent holders. If the English never established a patent law, then there would be nothing for them copy and the overall welfare of society would be reduced.


> producing things without economic incentive is essentially the argument for anarchosocialism.

Which could work if we were to implement something like universal basic income, or progress to an agalmic economic society. I'm not optimistic on either of those.


Intellectual property is the probably the number one way the western world oppresses the poor.


Intellectual property monopoly oppresses everyone, not just the poor.


I assume you’re referring to drug patents with that remark?


Your own post is "intellectual property." Can you be a bit more specific?


Sure.

Most of the world does not live in western countries (As a simplification think Europe, Australia, US, Canada etc).

In general, most of the world's valuable intellectual property has originated from Western countries.

What intellectual property law does is provide a monopoly on selling/producing something to a company or individual. The thing that is interesting about intellectual property is that it is not tangible. If someone is assaulted, or their physical car is stolen- the damage is very real and tangible.

However with intellectual property we have a worldwide system where copying intellectual ideas is equated to the same thing as physically stealing.

For example, imagine I setup a factory that outputs clones of the "Land Rover Range Rover" in East Timor. I may be allowed to sell the vehicle domestically, but exports of the vehicle to "advanced economies" will undoubtably blocked due to IP infringement.

This is a highly questionable practice for a few reasons.

1. Worldwide consumers would benefit for lower prices on Range Rovers 2. The production of Range Rovers in my knock off factory does not prohibit Land Rover from producing their vehicles 3. The special interest groups who benefit from the Range Rover monopoly are much wealthier than the rest of the world, and the monopoly only serves to reinforce that.

Intellectual property is fundamentally a way for the wealthy (people who can afford lawyers) to prevent potential competitors from implementing ideas.

There is no monopoly on differentiating mathematical functions, or calculating the current in an electric circuit. Yet somehow there are laws prohibiting copying designs for integrated circuits. It is all nonsense and the only winners are IP holders and lawyers.


World with IP: Expensive Range Rovers.

World without IP: No Range Rovers.

Your imagined world of cheap range rovers if we suspended IP only works once but destroys all future incentive to create.


How is copyright anti-competitive? If you come up with an original work independently, why do competitor principles require ever letting someone else copy that work? We aren’t talking about limited resources here.


One example is derivative works.

Fanfiction runs into legal trouble with copyrights.


Are derivative works competitive or anti-competitive? Truly original ideas could plausibly find it harder in that market.


"Competitive" in the context of IP laws means competing to sell exactly the same thing (not 2 different books, or even 2 books from the same genre, but the exact same text). Copyright laws prohibit you from selling a thing I hold the copyright to, so they are by definition anti-competitive. We otherwise might be able to compete on price or availability, for instance.


Reading the opinions, it is a breath of fresh air to see one of the branches of government relying upon fact and logical argument when discussing the issues. This is how America is supposed to work.


Reading and listening to https://www.oyez.org/ - a fantastic resource for Supreme Court transcripts - it's clear that regardless of their backgrounds and circumstances of their appointment, each justice is incredibly intelligent and engaged.

The problem is that when it comes to the really sticky, complex issues that affect huge swaths of human rights, it's very possible for justices, in your words, to "rely upon fact and logical argument," but base their end goal/optimization function on either "what did the founders of the country factually and logically intend" or "what do the norms and ideals of modern society suggest would be factually and logically sustainable" without regard to the opposite viewpoint.

A real balance between these viewpoints keeps the pendulum from swinging out of control; it serves as a low-pass filter on the often-wild steering of policy, or the whims of a short-term-focused electorate. But it's equally important that the ultimate power reside long-term with the people. And one very possible outcome is that our justices succumb simultaneously to a pandemic, during an administration that, to be as charitable as possible, does not seem particularly concerned with nuance, system stability, or universal enfranchisement. And it's a lot to ask of a justice to hold both the meta-meta-viewpoint and legal precision in mind, especially as it seems likely that constitutional questions will be in play as November approaches. All we can do is hope they will rise to the occasion.


FYI: a lot of US supreme court opinions are not even written by justices, but by their law clerks and assistants. Similarly, judges deputise their legal research to them at rate that would be rather unsettling for most of us outside of US.

Anything like that would not be something expected from country's best laywers. A judge given a quarter million USD salary must be the best of the best in performance, and not to deputise his most important duties.

> it's clear that regardless of their backgrounds and circumstances of their appointment, each justice is incredibly intelligent and engaged.

I heard of much less charitable descriptions of the process, with the most frequent being about the well known mental decline of some judges.

> The problem is that when it comes to the really sticky, complex issues that affect huge swaths of human rights, it's very possible for justices, in your words, to "rely upon fact and logical argument," but base their end goal/optimization function on either "what did the founders of the country factually and logically intend" or "what do the norms and ideals of modern society suggest would be factually and logically sustainable" without regard to the opposite viewpoint.

This is one of very many problems. US court system has become too much more than just a legal institute it should be.

The point my law instructor told me was that a judge just a lawyer on the government payroll, and half of them should be sent back to the law school so bad their skill level was. Then, if you can not trust half of them with most basic judicial duties, why should you entrust them with the fate of society, moral guidance, and big matter topics?

Basically, the elites in the West tend to think too many things about lawyers, when they shouldn't.

He was a lawyer by trade, and he was not happy with society putting lawyers in charge of running itself at all.


> Anything like that would not be something expected from country's best laywers. A judge given a quarter million USD salary must be the best of the best in performance, and not to deputise his most important duties.

$250k is what 4th year lawyers at big firms like Cravath make. Partners can make 10x or more, and a lot of the work of partners is done by associates. [0]

If an associate has clerked for a supreme court justice, they can expect bonus of $400k. [1]

I don't know of a justice who has gone back to private practice, but it doesn't take too much to imagine that their salary would be much, much more than a quarter million USD.

[0]: https://abovethelaw.com/2018/06/first-firm-matches-the-new-a... [1]: https://abovethelaw.com/2018/11/400k-is-now-the-official-mar...


Doesn't really matter in the end.

If you accept a salary for a job you actually do the job. Period.


$250k is indeed not big money in DC / NYC / Boston. Consider that such a single income, after taxes, would be just about adequate to quality for a mortgage on a well-appointed toolshed in Nantucket.


The justice still gets to decide what language and arguments make it into the final opinion. The clerks are their to take some of the load off their shoulders. The supreme court produces a lot of writing every year for nine people and they cam be very hairy technical issues, of course they have a staff to assist them in research and drafting.


The judicial branch is supposed to rely on facts and logical arguments. That is not how “America” writ large, however, is “supposed to work.” If that’s what the framers anticipated, they would have have had the other two branches likewise run by unelected subject matter experts with life tenure. But they didn’t.

The fact is that the world is too complicated to figure out via facts and logical analysis, and that’s why ultimate control of policy rests with elected politicians. We’re seeing this play out at a grand scale right now. In the US, classes are cancelled for the rest of the year. Meanwhile, German students went back to school a week ago. And in Sweden, lower schools were never even shut down in the first place. Logical analysis doesn’t tell you what are the appropriate trade offs between keeping the economy running and keeping people safe. What the purposes of the welfare state should be isn’t a fact waiting to be discovered through empirical methods. These are all political judgments. Even where facts and logical analysis could play a role, it often doesn’t, because experts don’t agree on often very simple facts, or the experts’ answers are too complicated to be actionable.


Hey, you're back! Glad to see you didn't leave forever.


Thanks! (I didn’t quit really, just took a break from Internet forums for lent.) Hope you and your family are okay in NYC.


I actually moved to Chapel Hill, NC in 2017 though I was planning to move back to NYC in June of this year. That plan is now delayed though for the obvious reason.

Fam is doing about as well as one could expect with two working parents and a 4yo stuck in the house.

Hope you and yours are holding up as well.


> Meanwhile, German students went back to school a week ago. And in Sweden, lower schools were never even shut down in the first place. Logical analysis

Where do you fit Italy, Spain, or even Portugal in your logica analysis? Because arguably the US is being hit harder than any of those countries and yet they are respecting their quarantine with notable results.

Meanwhile, neither Germany nor Sweden has suffered as much as neither Spain or Italy.


The US has not been harder but than Italy or Spain, or even Sweden.

Sweden has had 2,300 COVID-19 deaths for 10 million people. The USA has 25 times as many deaths, but 32 times the population. Indeed, American cities with similar population and density to Stockholm have far fewer deaths. Washington DC is a little smaller and has similar density, but has had 165 deaths, versus over 1,100 in Stockholm. (Deaths are doubling in both countries every two weeks, so they seem to be at similar points in their overall trajectories.)

Similarly, the death rate in the US outside of NYC is comparable to that of Germany. (NYC has no counterpart in Germany; it’s almost three times as dense as Berlin, and more than twice as tense as Munich.)

But that’s a political decision the Swedes have made, and maybe it will prove to be the right one. It could be that, in the fall, the virus resurges in places where people have been sheltering and have not developed anti-bodies, while Swedes manage to avoid that resurgence because they never shut down. No expert can tell you which way it will be. They can tell you a discrete fact (sheltering in place will save more lives than otherwise), but are in no position to plug that fact into a value framework and reach a decision. But politicians must make a decision one way or the other.


The folly of using linear scales to score exponential phenomena should be noted here. 32/25 is 1.28, less than one doubling interval.

Which for the US remais about 14 days (a marked imprvement over 2.14 when I first started looking at it), it's about 26 days for Italy.

When looking at exponential (or recently exponential) phenomena, rate-of-change matters vastly more than absolute value.

(And I'm not evev factoring in undercounting, testing failures,and other attempts to game the scoreboard here.)

https://www.worldometers.info/coronavirus/country/italy/

https://www.worldometers.info/coronavirus/country/us/


> The US has not been harder but than Italy or Spain, or even Sweden.

You should check the facts. In the past few weeks New York alone reported more covid infections and deaths than Spain's total from the start of their outbreak, and New York has around 25% the population of Spain.

New York also has between 2 to 3 times the number of active covid cases that Spain has, which indicates the death count will only get far worse than what it already is.

> American cities with similar population and density to Stockholm

You may try to cherry pick anything, but the facts are the facts.


These are the facts: https://www.worldometers.info/coronavirus/?utm_campaign=home.... The US has had a little over twice as may deaths as Spain, but has more than six times the population.

You’re the one who is cherry picking. 97.5% of America doesn’t live in NYC. What’s going on in NYC isn’t a proxy for the USA as a whole. If you want to talk about NYC, we can do that—we could compare to Barcelona or Madrid or something similar. NYC has suffered for some reasons very specific to it. (Due to its role as an international travel hub, it is estimated that up to 100 different people started chains of infection in NYC, versus less than 10 in California). But even including NYC, the USA as a whole hasn’t been as hard hit as Sweden, much less Spain.

And excluding NYC (where, again, 97.5% of Americans live), the USA has been even less hard hit. My state is about the size of Switzerland, and has had half as many deaths.


>You may try to cherry pick anything, but the facts are the facts.

I enjoy the irony of criticizing someone for cherry-picking, while using NY as a proxy for how the whole of the US is doing.

Perhaps you could've picked the state that is most directly comparable to Spain in population and land size, California: 1/10th as many people dead per million. (But that too would be cherry-picking)


Your ignoring population size and focusing on totals. We are talking about the USA overall. According to https://www.worldometers.info/coronavirus/ as of now:

Country, Deaths / 1m pop, Cases / 1m pop

USA 171, 3,045

Spain 503, 4,907

Italy 446, 3,298

Sure if you cherry pick the worst city in the US and compare it to Italy or Spain then yes you can make it look like there are more cases in the US and be technically correct but overall the US is doing better then Italy and Spain.


Fairfield County, CT has 0.77 deaths per 1000[0] which far exceeds Stockholm despite having far less population density. New Orleans also falls short and has 0.78 deaths per 1000. The US is a big country, so I think it's a mistake to look at the whole country's infection curve rather than regional infection curves. Some areas have not yet been hit hard by the virus because their region was not hit first. Hopefully with adequate public health measures their curves will never match NYC or adjacent regions.

It's also worth noting that the death curve probably has a 2-3 week lag behind the infection curve. At a 2 week doubling rate, even if you miraculously came out with a vaccine tomorrow and immunized the whole population you would still have yet to experience half of all deaths from the disease.

[0] https://www.nytimes.com/interactive/2020/04/23/upshot/five-w...


You mean this is not the norm? The cases I've read seemed quite reasonable. They happened in the 90s and early 2000s though.


I read a few case opinions per year. There are ones that are partisan but on the whole are incredibly well thought through, argued, and written.

There are some disasters, but even then you get beautiful rebuttals (e.g. Kagan's dissent in Rucho v. Common Cause)


It's even more impressive when you realize that in many cases the opinions are largely researched and written by clerks.


I would say less impressive? Many great things can be produced by teams of what are essentially grad students.

A single person churning out brilliant opinions over decades would be more impressive to me.


It is the norm for the Court. It's just quite contrary to much of what we see in the news daily.

This ruling split the judges in an uncommon way, which was even more welcome.


There are definitely more than a few partisan court cases, but most of them are very very logical. Even when it's a partisan, ideological split.


Ha. The trick is that what's "logical" and what's "partisan" depend entirely on who is speaking, like how cries of "judicial activism" only ever arise when it's a ruling against a conservative position. If it's a ruling FOR the conservative position, it's obviously logical and sound, and possibly correcting previous evil irrational liberal decisions.


This is an easy take if you don't follow the court. The cases that tend to get a lot of press tend to be ones with clear ideological lines.

But not every case is divided 5–4 along the line of which party nominated the justice. There are a lot of ideological currents that don't fit cleanly into political parties


cries of "judicial activism" only ever arise when it's a ruling against a conservative position

I saw a counterexample just this morning. An editorial was arguing that the Court's "interference" in the Michigan election threatens democracy, and the only solution is to pack the court.


No, I rarely read an opinion from the high court that I can't at least understand the logic and reasoning behind, regardless of if I agree with the conclusion


It may be the norm, but they also get some completely wrong: Citizens United, for example.


Citizens United was obviously correct. (While it’s not dispositive, look up which side the ACLU supported in that case.)


The enormous amount of money now in politics clearly shows just how wrong it was. The ACLU isn’t always right, either.


The ACLU has the weird conviction that principles, not just results, matter.


First of all, the outcome doesn't speak to the Constitutionality. Maybe the Constitution, as is, doesn't produce the outcomes we want, and Article V lays out a process to amend the Constitution. The outcome of a SCOTUS decision is "wrong" insofar as it incorrectly determines the legality of something, not whether or not it produces politically unfavorable outcomes.

Second of all, in practice, the influence of money in politics is overstated.

Hillary Clinton outspent[1][2] Donald Trump by 2x in the 2016 election, and still lost. In fact, she had far more corporate backing[3][4] than Donald Trump, and still lost.

In the 2020 Democratic Primaries, Michael Bloomberg spent $1 billion[5] (!!) on his campaign, and won just 9.4% of the popular vote (1.38% of pledged delegates).

Tom Steyer (a no-name billionaire), spent $343 million[6] on his election, and won a humiliating 0.38% of the popular vote (0% of pledged delegates). Interestingly, you would think he would have at least 1/3 of Bloomberg's vote, which suggests that the vast majority of the variance in Bloomberg's vote share can be attributed to his existing name recognition as a famous businessman/politician.

Bernie Sanders spent $195 million[7] on his election, having spent less than Bloomberg + Steyer and while having handily beaten both. Joe Biden spent $105 million[8] on his campaign, less than Bernie, and still beat him by 3 million votes.

Elizabeth Warren spent $121.31 million[9] on her campaign, and also handily beat Bloomberg + Steyer while having spent far less than them, while losing to Biden while having spent more than him.

Those are just the anecdotes (of which there are many more).

Decades of research[10] suggest that money probably isn’t the deciding factor in who wins a general election, and especially not for incumbents. Most of the research in the last century found[11] that spending didn’t affect wins for incumbents and that the impact for challengers was unclear[12]. Even the studies[13] that showed spending having the biggest effect, like one that found a more than 6 percent increase in vote share for incumbents, didn’t demonstrate that money actually causes wins. In fact, those gains from spending likely translate to less of an advantage today, in a time period where voters are more stridently partisan. There are probably fewer and fewer people who are going to change their vote because they liked your ad.

So this argument is dubious both legally as well as prescriptively.

[1] https://www.opensecrets.org/pres16/candidate?id=n00000019

[2] https://www.opensecrets.org/pres16/candidate?id=n00023864

[3] https://www.opensecrets.org/pres16/contributors?id=n00000019

[4] https://www.opensecrets.org/pres16/contributors?id=n00023864

[5] https://www.opensecrets.org/2020-presidential-race/candidate...

[6] https://www.opensecrets.org/2020-presidential-race/candidate...

[7] https://www.opensecrets.org/2020-presidential-race/candidate...

[8] https://www.opensecrets.org/2020-presidential-race/candidate...

[9] https://www.opensecrets.org/2020-presidential-race/candidate...

[10] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2605401

[11] http://journals.sagepub.com/doi/10.1177/0002764203260415

[12] https://www.jstor.org/stable/2138764?seq=1#metadata_info_tab...

[13] http://www.sas.rochester.edu/psc/clarke/214/Gerber98.pdf


Whether you agree with or disagree with the Citizens United outcome, describing the majority opinion as a straightforward "completely wrong" (when, for example, the ACLU supported the verdict) indicates that you have not, in fact, read any of the opinions or dissents, or done research about the specific case that was being litigated.


They overturned an at the time recent Supreme Court verdict, which is disruptive and counter to long standing precedent.

https://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_of_...


That doesn’t make a decision “wrong.” Lots of Supreme Court opinions are wrong, and often obviously so. There is nothing wrong with overruling them.

Citizens United was an instance of the government sliding down a slippery slope of precedent, which forced that precedent to be re-evaluated. The facts (the government attempting to punish someone for distributing a political movie about a political candidate) were so stark, they revealed the defects in the precedent that may have been obscured previously. Moreover, the government made clear at oral argument that there was no limiting principle to its position—it acknowledged that, had the Court ruled the other way, nothing stopped the government from book banning and other core free speech violations.


Treating the court as a purely political entity which will flip flopping on issues as the majority changes is counter to it’s design.

The the normal way this is maintained is to have narrow opinions on the specific issue at hand. As such I can agree politically and still say the ruling was unequivocally incorrect.


Well said (about the dynamics of why a precedent would be reversed) ... and welcome back.


> precedent

and just because precedent is overturned doesn't mean it is wrong. I don't like Citizens United as much as the next person, but I think this requires a constitution change.


I’ve read plenty on the subject. I don’t have to articulate bullet points about it just to suit your needs. It has obviously been to the detriment of honest political discourse and is completely wrong. Thanks, though.


What if it's right, but the constitution is wrong?


Then you follow the procedure outlined in article 5 to amend the Constitution.


That is much easier said than done.

It’s 2020 and we still don’t have a gender equality amendment even though the majority of states want one.

...let alone amendments for healthcare as a right, abortion rights, and proportional representation.


It's supposed to be hard. That's the point. You have to get an absolutely overwhelming majority before you can change a the source code.


Are gender equality laws prohibited by the Constitution? Title IX shows no.


The issue isn’t that there’s a difficulty in creating gender-equality laws, but that the opposite is true: it’s just as straightforward for a legislature somewhere to enact misogynistic laws. A constitutional amendment to recognise gender equality would mean US laws like these could be struck-down or never get enacted in the first place: https://www.globalcitizen.org/en/content/sexist-laws-in-the-...


At this point that's effectively impossible. To the point where I don't think that's really a viable solution to America's problems.


The partisan politics you see on TV is thankfully just the tip of the iceberg.


I suspect that idiom means just the opposite of what you think it means. By "thankfully" I infer that you are relieved that the vast majority of political activity, "below the surface" of what is seen on TV, is nowhere near as reprehensible. Whereas "tip of the iceberg" is generally used to imply that the visible problem is merely a fractional indication of the much greater and uglier problem that lies beneath, being of the same matter and type of that which has already been seen.


Ah correct, I did misuse it. Thank you.


I'm not sure I agree. I think mundane issues become partisan whenever they become political, but many mundane issues are still just dealt with by whatever bureaucrat or official is just doing their job applying the law.

In my experience with the US Federal Gov't (through my wife and family) applying the boring law is the norm, and what's not normal is when political actors inject themselves or create a narrative about an issue to suit their purpose. US Federal Employees are deeply apolitical as a workplace culture.

We see a lot of the latter, but there's only so much bandwidth for it. Most work is boring and getting done in a professional manner


What's your opinion of Gorsuch and Kavanaugh, in regards to them using facts and logical arguments?


> Reading the opinions, it is a breath of fresh air to see one of the branches of government relying upon fact and logical argument when discussing the issues.

Your optimism is refreshing, but this is not how law works.

Judges and lawyers start from a conclusion, and then find case law to back up their conclusion.

Now, to be fair, most judges and lawyers who are competent tend not to go far off the established precedents. This is especially true at lower levels where higher judges are going to review your case--nobody wants to be the judge who gets overturned all the time.

Judges are not engineers. The law regards "truth" as subject to negotiation without objective boundaries. An engineer regards "truth" as "the thing that kicks your ass when you contradict it".


I had never heard of the "government edicts doctrine" before. Doing a little research, I see why. It is a judicially created doctrine created by the Supreme Court ~130 years ago, and this is the first time since then it has been back to the Court.

What they decided way back then was that opinions of state court judges, like opinions of Federal court judges, were not copyrightable. They also decided a little later that annotations written by a state-employed annotator where the state did not claim copyright on the annotator's work could be copyrighted by the annotator.

What's new in this case compared to those cases that originally established the government edicts doctrine is that it was a state that was trying to assert copyright ownership of the annotations.


Laws, and their official (albeit non-binding) interpretations should not be under copyright. This has struck me as an absurd assertion from the very beginning: We're supposed to live in a nation of laws: how could that ever be the case if the laws themselves are kept from the people?


Another related issue is the copyright of technical standards incorporated into law. A selection of technical standards, especially in the domain of civil engineering, the standards on fire, electrical safety, energy efficiency, and test design standards, are effectively laws. The implementation of standards is explicitly required by the laws and there's no alternative. Yet, these standards are often sold for-profit with copyright restriction.

The EFF has some coverage on the issue [0][1].

[0] https://www.eff.org/deeplinks/2019/11/eff-court-dont-let-pri...

[1] https://www.eff.org/press/releases/publicresourceorg-prevail...


I'm pretty eager to see where the ASTM case lands. I'm rooting for Public.Resource.Org, but given that the DC Circuit remanded on fair use (rather than copyrightability), the court will probably consider "amount and substantiality" of the work reproduced relative to the original.

Public.Resource.Org photocopied and distributed the complete standards, cover to cover, including ASTM's illustrations, logos, etc. But what aspect of the manuals are the actual law? The technical measurements? From what I understand, the Georgia annotations became law by reference in their entirety. I don't think it's obvious here and I worry the court will rule against them :/

Regardless, I love Public.Resource.Org's work and wish them the best.


> I don't think it's obvious here and I worry the court will rule against them :/

Yes, ultimately, the issue of technical standard is still untested in court and remains a problem, it will take a prominent lawsuit before it's resolved.

> But what aspect of the manuals are the actual law? The technical measurements?

What Public.Resource.Org is doing is still a gray area, as you said. But I guess it will not be a total loss - if there are legal challenges in the future, they can publish a "censored" version of technical standard and defend that.


It’s a welcome decision, but a very obvious one. Why did Georgia need to get told that we, the people, own the laws?


As a lawyer, I can chime in here. Annotated statutes are special. They have cross references to the cases which cite to the statutes. So if you're doing research on a statute, the annotated version will have the letter of the law word for word, then at the bottom it will have a little topical index (with topics based on a part of the statute) under each topic will be the cases citation which addressed that topic and a brief 1-2 line description of what that case held. Generally, one of the publishers puts them together instead of the state because it takes a lot of legwork and constant updating as new cases interpret the statute. State laws and statutes are obviously not something you can claim is your intellectual property but when they're annotated you are actually reading a lot of stuff that isn't the just the statute.


So why did Georgia feel the need to anoint this one the official annotated code?

There is obviously a market for annotations, what stopped LexisNexis from just doing the annotations on it's own initiative and selling the result itself?

What doomed their copyright is that they took state money to do it. Is it just corruption and they figured they can charge both sides?


> There is obviously a market for annotations, what stopped LexisNexis from just doing the annotations on it's own initiative and selling the result itself?

Because the annotations angle is a red herring? In the Oyez transcript of oral argument[1], Citron (for the respondent) made what I believe to be a relevant remark disputing the petitioners' assertion that legal annotations would be more expensive:

> One is the actual useful versions of these codes are already plenty expensive. There's a lot of discussion of the cost for a printed volume, but online access, which is what really most practitioners need to use, most people want to use, it's much more expensive than the $400. But, even accepting that the price is lower, I think that favors us, because what's going on there is an exchange of -- you're going to accept a price cap in exchange for the right to publish this officially, not for publishing the annotations, because Westlaw makes the annotations and is allowed to charge six times as much. Lexis isn't going to agree to do the annotation work in exchange for a price cap. What it wants for the price cap is the right to publish it officially.

As I understand the game being played prior to this decision (to be sure, IANAL): although annotations undoubtedly have market value, the market (for liability and other reasons) will nevertheless tend towards official sources, and if you're the official publisher granted monopoly, who cares if the thing being sold has a price cap ($?) when the subscription to the service that provides access to said official thing won't ($$!)...and even if said subscription cost was pragmatically constrained by market forces, the dragnet scales from typical legal/government/academic players in the arena to capturing a proverbial crap ton of otherwise unmarketable endusers on the receiving end of the law ($$$!) while taking share away from direct competitors ($$$$!!). Then make a free, unofficial version available in an attempt to pacify public dissent, but seed a mandatory disclaimer that it may contain errors, so anyone with skin in the game who can pony up will be compelled to do so.

[1] https://www.oyez.org/cases/2019/18-1150


Annotated statutes should only be special when created by others. A state's annotation carries significantly more weight: it bears an official status, and it should have been obvious that the state's official interpretation, though not completely binding, still constitutes critical information necessary for citizens to know and understand the laws they are expected to live by.


I agree. Unfortunately, it is really looked down on by judges when you cite to an annotated statute because the annotation it isn't generally considered law. Obviously, this case may change that in Georgia (maybe elsewhere). I'd certainly try to cite to annotated statutes if the US supreme court said the authors were legislators.


As somebody who definitely is not reading law, another facet of this is that while the Federal Government is prohibited from holding copyrights, same prohibition isn't fully incorporated to the States and certainly not to the rest of the local authorities. Wikipedia's overview [0] is nice.

The principle is obvious, and so while I can understand the dissenters' line of reasoning somewhat, it's absolutely flabbergasting to read some of their bullshit. Here's Thomas:

> Lastly, the annotations do not impede fair notice of the laws. As just stated, the annotations do not carry the binding force of of law. They simply summarize independent sources of legal information and consolidate them in one place. ... The majority resists this conclusion, suggesting that without access to the annotations, readers of Georgia law will be unable to fully understand the true meaning of Georgia's statutory provisions, such as provisions that have been undermined or nullified by court decisions. That is simply incorrect. As the majority tacitly concedes, a person seeking information about changes in Georgia statutory law can find that information by consulting the original source for the change in the law's status -- the court decisions themselves.

How magnanimous! It's appalling that this is the opinion of one of our top jurists: Want to practice law in Georgia? Better go find it, and hope you find all of it. But wait, there's more!

> The majority's rule will leave in the lurch the many researchers who relied on the previously bright-line rule. Perhaps, to the detriment of all, many States will stop producing annotated codes altogether. Were that to occur, the majority's fear of an "economy-class" version of the law will truly become a reality. ... For example, Georgia asserts that Lexis sold the OCGA for $404 in 2016, while West Publishing's competing annotated code sold for $2,570. Should state annotated codes disappear, those without the means to pay the competitor's significantly higher price tag will have a valuable research tool taken away from them.

Cry me a river! Listen to this shit: He thinks that the law will get more expensive if we don't let Lexis keep taking a cut. No, the law ought to be free, and the state ought to bend over backwards (or forwards) to ensure that the law is published so widely and legibly that there truly is no excuse for not being able to access it. The twenty-five states across the USA that currently publish annotated codes are in for a bit of a rude awakening, as they will be asked to stop dicking their citizens.

[0] https://en.wikipedia.org/wiki/Copyright_status_of_works_by_t...


The dissenting judges would tell you that the laws are not copyright, the annotations are, which, although important to understanding the law, are not the law.


But while they aren't the law, they hold the power of law as the annotations are used by judges to decide cases.


As the majority opinion and one dissenting opinion explain, whether a work has the force of law is not the test. If it were, dissenting judicial opinions would be copyrightable, but they're not. The rule is that works produced by judges or legislators acting in their official capacities are not copyrightable. In this case, the annotations were works-for-hire of the legislature; whether they have the force of law is irrelevant.


There's a little more to it than that -- "the laws" are clearly beyond the reach of copyright and have been forever.

What this case is about was some kind of annotated version of the statutes that included case notes and precedents and such. Georgia tried to claim that was subject to copyright. The Justices disagreed, claiming that the annotations were primarily created by legislators in the course of doing legislative work, and thus also could not be copyrighted.


This Amicus brief from other states aligned with Georgia attempts to explain the rationale:

https://www.supremecourt.gov/DocketPDF/18/18-1150/114285/201...


There are interesting implications:

> First, the author of the annotations qualifies as a legislator.

Whoa! There is a massive amount of such code, and the folks writing it are usually thought of as private lawyers, rather than public legislators. That's a big deal, since the legislative process cannot be unconditionally private, but has to be balanced to keep the public informed.


Does the Court’s holding that officials cannot be “authors” have any implications for copyright in privately written documents that have been adopted as laws or regulations? Is Veeck v. Southern Bldg. Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) still good law after today?


This is a huge win for civil liberty.


I'm not sure that it is. While I agree with the final outcome (seriously, why would the states be able to copyright annotations?), it sounds like the court ignored precedent and effectively made up a new law out of whole cloth to reach this outcome.

We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade (or some other more established opinion that you like, depending on your political leanings)? I can't tell how serious this is, but it sounds like another attempt to weaken stare decisis to me (again, with the disclaimer that I am not a lawyer or legal expert of any kind and maybe it's not nearly as bad as it sounds to me?)


I’m not so sure it ignores precedent, although it definitely extends it. I think Ginsberg in her dissent says it well that the issue follows from related precedent as such: “To explain why, I proceed from common ground. All agree that headnotes and syllabi for judicial opinions—both a kind of annotation—are copyrightable when created by a reporter of decisions, Callaghan v. Myers, 128 U. S. 617, 645–650 (1888), but are not copyrightable when created by judges.” She goes on to say “In contrast, the role of the legislature encompasses the process of ‘making laws’- not construing statutes after their enactment.” and that, “The OCGA annotations, in my appraisal, do not rank as part of the Georgia Legislature’s lawmaking process for three reasons.”

Those in the majority instead say “If judges, acting as judges, cannot be ’authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.” They say this extends to the annotations as “That of course includes final legislation, but it also includes explanatory and proce- dural materials legislators create in the discharge of their legislative duties.”

Whether the majority is correct in their decision or not, I think this is definitely a reasonable clarification of past precedent. I think Justice Thomas’s dissent is accurate when it says that this was not as clear cut a confirmation as the Majority opinion’s writing makes it out to be, but I think saying the decision is incongruous with previous precedent is also incorrect.


That may be fair; rereading Ginsburg's dissent though I'm still left wondering if it makes sense to apply precedent in the way the majority did, or if they were just making things up. It's quite possible that I'm just misunderstanding what I'm reading too though.


It’s definitely fair to disagree with the majority here. The written dissents also make sense, and as a 5:4 decision that wasn’t along party lines you’re in good company with Supreme Court Justices who think it was an incorrect decision.


> it sounds like the court ignored precedent and effectively made up a new law out of whole cloth to reach this outcome.

> We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade

That's... pretty much exactly what they did for Roe v. Wade.


No, they didn't. In Roe v. Wade they made up a legal test which they can do, and they interpreted existing laws in terms of their constitutionality. However, as far as I can tell that's not what's happening here. They just took a law that applies to the judiciary and said "yah, that applies to the legislature too now". Again, not a lawyer, so the way in which they reached their outcome may not be as bad as it seems to me since I don't really have the knowledge to evaluate it properly. Just because the decision is good though doesn't mean it doesn't have other bad consequences.


I would not agree with your assessment. The legislature wrote the laws, which are not copyrighted. But they went a step further in this case to add that the ACTUAL law to be applied in the State is the Annotated version, not the original unannotated version. Or in other words, the only way to obtain the actual law is through the version that was copyrighted. (See the Ars Technica article that has some good background on the history of the case).

I still see the case as being about the legislature creating law but then assigning the copyright to that law to someone else. That was decided long ago in the government edicts precedents. Without this overturned decision, this leaves you in the position that you cannot access the Official Laws without being forced to go to the owner of the copyright for access.


Yay for public.resource.org. Carl Malamud does excellent work. You can donate here: https://public.resource.org/about/donate.html



Surprised no cite to the oral argument on Oyez in current discussion: https://www.oyez.org/cases/2019/18-1150


I haven't read the whole opinion yet, but it seems to be arguing that works produced in the course of a legislative function are not authored, and therefore not copyrightable. It doesn't seem to have much to do with the content relating to the law or not.

And if so, what is the larger significance?


The point is, judges make decisions based on these annotations. Therefore, if you're a private citizen, or even an attorney, and you're dealing with the court system, you must have access to the annotations or you're at a serious disadvantage. For that reason, hiding them behind a subscription or paywall is the equivalent of "secret" laws, or perhaps justice reserved for the well-to-do.



this is a huge win - although it's interesting that Ginsburg and some other "liberal" judges seem to side with Georgia in saying that the state should be able to put the law of the land behind a pay wall.


Ginsburg daughter is a copyright law scholar who is very pro-copyright. Ginsburg's decisions tend to be very reliably pro-copyright on a court where consistency on copyright matters is utterly lacking among all the other justices. As compared to Ginsburg, it's a crap shoot how any particular justice will decide a copyright case.

I personally don't think this is a coincidence. I would guess that Ginsburg's thinking is heavily influenced by conversations with her daughter. Or perhaps Ginsburg's strongly held opinions on copyright influenced her daughter's career.


In case someone sees '5-4' and assumes the standard Republican vs Democractic appointee divide, this is definitely not what happened. Might be a case where one should read the various justices' opinions before deciding how they feel about the case.


That dissent refers to "non-binding annotations" which are more like the opinions of the law-makers, hence not part of their duties because they are not law.


Indeed, here is the very first paragraph of the dissenting opinion by Ginsburg (joined by Breyer), beginning at p. 39 of the linked submission:

> Beyond doubt, state laws are not copyrightable. Nor are other materials created by state legislators in the course of performing their lawmaking responsibilities, e.g., legislative committee reports, floor statements, unenacted bills. (Ante, at 8–9). Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” (Ante, at 9) (emphasis added). The core question this case presents, as I see it: Are the annotations in the Official Code of Georgia Annotated (OCGA) done in a legislative capacity? The answer, I am persuaded, should be no.


Which is reasonable, but isn't this publication THE only codified publication of Georgia's laws?


Correct.

Also, IANAL, but my understanding is the annotations are de facto required reading for practitioners of law. They give all the background and history of the law, without which, you would be at a severe disadvantage in the courtroom.


I can’t quite agree that the annotations are ‘required reading’ for competent representation of a litigant. Some state’s official printings of statute are pretty bare (Louisiana in particular), but Georgia’s official documents are quite thorough. The area of law, the type of arguments, etc are all facets of what types of references make good arguments. I’m not aging the annotations aren’t a good reference, but that some commenters seem to be placing a lot of emphasis on them, instead of other sources.


Two related questions...

1. In a state like LA, where annotations aren't included, would a lawyer purchase an annotated version from a 3rd party? I assume the information contained in the annotations is expected to be known, regardless of how it is obtained.

2. If a state elects to publish annotations as part of the only published code, does that lend any extra weight to the annotations (effectively, by putting them in the same book, and making that book the only copy of the state code, the state has signaled "these notes are the way we intend you to read/interpret/practice the law").


The answer to 1 is yes, although it is more common for the information contained in ‘annotations’ to be accessed via Westlaw or Alexis online subscriptions.

As to 2, I think the primary evidence for extra weight would be the number of citations to the ‘official’ annotations in rendered opinions, but that it would not be an official jurisprudential rule.


Per the decision, the un-annotated code is made freely available.[0] The issue at hand is the annotations.

The majority opinion is that the key point is authorship. Officials whose work has the force of law (aka judges and legislators) cannot be authors for purposes of copyright of any work produced in their official capacity as a lawmaker. Their argument is that the annotations are published by the legislative body of Georgia in an official capacity, and therefore are not subject to copyright.

The first dissent disagrees with the majority's interpretation of the government edicts doctrine (lawmakers cannot be authors of, and therefore cannot hold copyright on, works produced in the discharge of their lawmaking duties), finding it too broad and not obvious. The core point is that the type of work matters, and that in this case the type of work is not legislative.

The second dissent argues also that the type of work matters, and that annotations such as those under consideration do not created in a legislative capacity. This agrees with the majority argument about the government edicts doctrine, but disagrees about whether this work constitutes a government edict.

[0] This is mentioned spanning the bottom of page three and the top of page four of the majority opinion (pages six and seven of the PDF):

> In exchange, Lexis has agreed to limit the price it may charge for the OCGA and to make an unannotated version of the statutory text available to the public online for free.


Any worries about over-expansion of the public domain on legislature-produced works seem very strange to me. Why does anything that lawmakers produce deserve to be copyrighted? They are elected public servants.


The gist of the government edict doctrine at hand in the majority's opinion is exactly this.

It is a precedent-based doctrine that says official works of officials whose work carries the weight of law cannot be copyrighted. This is because the law belongs to the people, from whom its authority derives. Thus, a lawmaker (legislator or judge engaging in lawmaking duties - official works) cannot be the author of their work, because their work (the law) belongs to the people. Copyright protections are granted to authors.

This was precedent established in the 1800s, and has now been upheld in this decision. It seems a quite significant decision in this area.


How would your argument change in the event that this were the only such publication? How about if there were 1,000?

EDIT: I now realize that George effectively only published an annotated version of its laws, which can only be purchased (it seems) from LexisNexis. While a free version is available, this version appears to be prepared by LexisNexis (all of this is my understanding from ref 1)

1. https://arstechnica.com/tech-policy/2019/12/justices-debate-...


The free version is the unannotated code and Lexis is required to make it available per the contract with the Georgia legislature.


I recognize this, but (at least, per the reference I linked) the free version isn't an official state of Georgia document. It seems the only official version of the state laws is the commercial version.


I tend to agree with you, but availability of the text of the statutes is not at issue in the case here. In all of the opinions, every justice agrees that the text of the laws should be freely available, and not one of them raised any issue with the fact that the text of the statutes is made available through an agent, rather than directly by the state.

It is difficult to make an argument from a negative, but it is interesting to note that no one seems to care that Lexis distributes the text.

Also, if you go to Georgia's legislative web site and click on the link for "Georgia Code"[0], this takes you directly to Lexis Nexis. This seems as official as anything you'll find. The fact that a government contracts a third party to provide a service does not imply that that government is failing to provide said service.

As an analog, if I am a landlord, I am required to maintain any premises I let in a state that is fit for humans to live in. Whether I hire third party contractors to do the work to maintain these conditions or do the work myself, I am discharging my duties as landlord. No one would ever complain that I hired a plumber rather than fixed a toilet myself (assuming that the work is of the same quality).

[0] left-side nav bar, under "Legislation" heading, second from the bottom of its section.

Edit: I'll note that the arrangement as laid out in the syllabus of the Supreme Court decision reads differently than that in the Ars article. The syllabus clearly states that the annotations are produced as a work for hire by a division of Lexis for the Georgia Assembly in a contract managed through the Code Revision Commission (a committee of the Georgia legislature). The copyright vests in the state of Georgia. The Ars article implies (based on my reading) that the copyright belongs to Lexis. These two readings provide very different starting points.

Separately, the Ars article raises FUD about the copy of the statutes hosted on the Lexis website, but the state of Georgia clearly links to this as the code. Lexis, as a third party without the ability to make law (and as an organization of lawyers) has some hedges it probably has to make when posting legal documents. Georgia claims this is the official text of the statutes. I'll defer to Georgia on this matter and accept the Lexis text as canonical.


Why?




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